100 Percent Jewish and Democratic State

Amos Schocken
Amos Schocken
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A protest against Israel's family separation law outside the Knesset on Tuesday.
Amos Schocken
Amos Schocken

At a conference in February 2018 Ayelet Shaked – Israel’s interior minister today, she was the justice minister at the time – said two things that sound contradictory. On the one hand, she argued that “Israel must be Jewish and democratic, and these values must be parallel; one must not outweigh the other.”

On the other hand, commenting on the Citizenship Law, she said, “There are grounds for maintaining Israel’s Jewish majority, even at the price of the violation of rights.” There is no choice but to conclude that contrary to what Shaked herself said, Judaism outweighs democracy.

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It’s worth rereading what Justice Edmond Levy wrote nine years ago in his dissenting opinion on a ruling in which the High Court of Justice rejected a petition against the family reunification law (for the second time): “The loss of Israel’s democratic image, its relinquishment of fundamental concepts that have served it from its inception, will be the biggest achievements for those who seek to destroy it. Turning our back on principles that are at the core of our moral worldview, adopting – even for lack of choice – the standards held by those against whom we seek to protect ourselves and acquiescing in moral harm that isn’t required by reality will ultimately weaken us more than they strengthen us.

“The Law of Citizenship and Entry into Israel, in the version placed before us, creates more than a crack in the wall that has stood strong until now and whose name is ‘the Jewish and democratic state.’ The harm done by the law is severe. Its damage reverberates. Its enactment is a foundational event in the history of Israeli democracy.

“Even if there are people who will view this as a watershed in relations between the different branches of government, the court can no longer observe this incident from the sidelines. There is no choice but to exercise our judicial authority. The severity of the harm and the fear of its other ramifications necessitate this.”

On Sunday, Gideon Levy wrote in Haaretz that this Wednesday we will find out whether the Knesset wants a Jewish state or a democratic one, because Israel cannot be both Jewish and democratic. Even those who support the bill, favoring a Jewish state over maintaining democratic principles, ought to reconsider whether they want to risk having the law overturned by the High Court.

But perhaps we could try to act in the spirit of something former Supreme Court President Aharon Barak once wrote – that a ruling can be simultaneously 100 percent Jewish and 100 percent democratic.

This bill, on which the Knesset is slated to vote Wednesday, must be rejected. The expiration of the existing law, which was enacted as temporary legislation, will in itself allow the status of Palestinians from the territories to be equal to that of any other foreign national who seeks to live here with his or her Israeli partner.

The result will be that in the event of a family reunification in Israel between an Israeli citizen and a Palestinian from the territories, the Palestinian won’t be able to receive Israeli citizenship, but will receive full residency rights. This will preserve the “Jewish” element while also protecting the democratic element of individual rights.

Thousands of Palestinian Israelis study in institutions of higher education in the Palestinian Authority. The creation of a family unit in Israel consisting of a Palestinian Israeli student and a Palestinian student from the West Bank would suffice to fulfill the right of dignity that both enjoy under the Basic Law on Human Dignity and Liberty.

This is also the model used in the European Union. A Romanian national living in Paris who marries a French citizen won’t become a citizen, but merely a resident. To vote in an election, he or she will have to travel to Romania.

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